Executors, Witnesses and Beneficiaries: Key Will Requirements in Queensland and NSW
Draft for review. This article provides general information only and does not replace legal advice about an individual Will or estate.
A Will is more than a document stating who should receive a person’s assets. It must be properly executed, clearly appoint an executor and identify beneficiaries in a way that can be understood and administered after death.
The formal requirements are broadly similar in Queensland and New South Wales. However, the governing legislation, treatment of beneficiary witnesses, court procedures and rules concerning informal documents are not identical.
For Queensland, the principal legislation is the Succession Act 1981 (Qld). In New South Wales, the relevant legislation is the Succession Act 2006 (NSW).
People who live in one state and own property, have family or appoint executors in the other should not assume that a template prepared for one jurisdiction will be suitable for both.
Formal Will requirements in Queensland and NSW
A formally executed Will in both jurisdictions will generally need to satisfy the following requirements:
It must be in writing.
It must be signed by the Will-maker, also called the testator.
The Will-maker must sign, or acknowledge an existing signature, in the presence of two witnesses who are present at the same time.
At least two witnesses must then attest and sign the Will in the presence of the Will-maker.
The Will-maker must intend the signature to operate as the execution of the Will.
The witnesses do not generally have to sign in each other’s presence. However, the Will-maker must sign or acknowledge the signature while both witnesses are present together.
In Queensland, these requirements are set out principally in section 10 of the Succession Act 1981 (Qld). The equivalent formal execution provisions appear in section 6 of the Succession Act 2006 (NSW).
The safest signing process is for the Will-maker and both witnesses to remain together throughout the signing ceremony. Each person should sign where directed in the document, preferably using the same pen. The document should also be dated.
Attestation clauses and witnessing
An attestation clause is a statement near the end of a Will confirming how it was signed and witnessed. For example, it may record that the Will-maker signed in the presence of both witnesses, who then signed in the Will-maker’s presence.
An attestation clause is not, by itself, what makes a Will valid. Queensland legislation expressly states that a Will does not need to contain an attestation clause. NSW law also does not make a particular attestation clause essential.
Nevertheless, an attestation clause is useful evidence. After a person’s death, the executor may need to apply for probate. The clause can help demonstrate that the statutory signing process was followed, particularly if several years have passed or one of the witnesses cannot be located.
Witnesses should generally be:
Adults who can see the Will-maker sign or acknowledge the signature.
Independent of the Will-maker and beneficiaries.
Not people who are receiving a gift under the Will.
Not spouses or close associates of beneficiaries where independent alternatives are available.
A beneficiary who witnesses a Will can create significant complications. In both Queensland and NSW, legislation may affect a gift made to an interested witness. The gift may be void unless an exception applies, such as the presence of sufficient independent witnesses, informed consent from affected persons or a court order.
The practical rule is straightforward: beneficiaries should not witness the Will.
Appointing an executor
An executor is the person appointed to administer the estate. The executor’s role is different from that of a beneficiary, although one person may be both an executor and a beneficiary.
A Will can appoint:
A sole executor.
Two or more co-executors.
A substitute executor if the first choice dies, loses capacity or does not wish to act.
A professional executor or trustee company, where the estate is complex or a family dispute is anticipated.
The appointment should be discussed with the proposed executor before the Will is signed. The role can involve substantial work, including dealing with financial institutions, real estate, tax records, insurance, business interests and family communications.
A person named as executor is not necessarily required to accept the appointment. An executor may be able to renounce probate before dealing with estate assets. The position becomes more complicated if the executor has already started administering or distributing estate property.
Executor duties in Queensland and NSW
Although the terminology and court procedures differ, the core responsibilities of an executor are broadly similar in both states.
An executor may need to:
Locate and secure the original Will.
Identify the deceased person’s assets and liabilities.
Arrange the funeral and deal with urgent expenses.
Obtain a death certificate and notify relevant organisations.
Protect estate property, including real estate and personal belongings.
Collect debts owed to the deceased.
Pay valid debts, expenses and taxes from estate funds.
Apply for probate if a grant is required.
Deal with claims made against the estate.
Distribute the remaining estate in accordance with the Will.
The executor must act in accordance with the Will and the law. An executor is not entitled to prefer one beneficiary without proper authority, use estate property personally or distribute assets before accounting for debts and potential claims.
The Supreme Court of NSW states that an executor has duties including collecting assets, preserving property, keeping proper accounts and distributing the estate according to the Will. Queensland’s legislation similarly imposes duties on personal representatives to collect and administer estate property, account when required and distribute the estate as soon as practicable.
An executor may face personal consequences for serious delay, misuse of estate property or failure to comply with legal obligations.
Who can be a beneficiary?
A beneficiary is a person or organisation intended to receive a benefit under the Will. Beneficiaries may include:
A spouse or de facto partner.
Children, stepchildren or grandchildren.
Other family members.
Friends or carers.
Charities.
A testamentary trust.
A beneficiary who is to receive a specific asset, such as a property or vehicle.
Residuary beneficiaries who receive what remains after debts and specific gifts are dealt with.
A Will should identify beneficiaries clearly. Full legal names, relationships and other identifying details can help reduce uncertainty. The Will should also contain a residuary clause dealing with assets that are not specifically gifted.
This is important because a person’s assets can change after the Will is signed. A property may be sold, a bank account may be closed, or a particular gift may no longer exist. A properly drafted residuary clause helps ensure the remaining estate is dealt with.
Not every asset passes through a Will. Jointly owned assets, superannuation benefits, jointly held bank accounts, life insurance proceeds and assets held through trusts or companies may be governed by different arrangements.
Alterations, corrections and codicils
Writing a change directly onto an executed Will can create uncertainty. Crossing out a beneficiary, adding a new gift or changing an executor’s name does not automatically make the alteration effective.
In Queensland, an alteration made after execution generally needs to be executed in the same way as a Will. Section 16 of the Succession Act 1981 (Qld) addresses alterations and requires the relevant signatures to be made near or in relation to the alteration, or in another manner authorised by the legislation.
NSW follows a similar approach. Alterations made before signing should be properly initialled by the Will-maker and witnesses. Alterations made after execution should generally be signed and witnessed in accordance with the formal Will requirements.
In most cases, preparing and signing a new Will is safer than making handwritten amendments. A codicil may be appropriate for a limited change, but multiple documents can make administration more difficult.
Electronic and informal Wills
A document created using an online service or word-processing software is not automatically invalid. The final document can generally be printed and formally signed and witnessed in accordance with the relevant state legislation.
However, a Will-maker should not assume that an electronically signed PDF, email, text message, phone note or video recording is automatically a valid Will.
Both Queensland and NSW give the Supreme Court power to recognise an irregular document in certain circumstances:
Section 18 of the Succession Act 1981 (Qld) allows the Court to dispense with execution requirements where a document records testamentary intentions and the Court is satisfied that the deceased intended it to operate as a Will, alteration or revocation.
Section 8 of the Succession Act 2006 (NSW) provides a similar dispensing power.
This does not mean that informal documents are equivalent to formal Wills. An executor may need to commence court proceedings, present evidence and notify affected beneficiaries. The result may be uncertain, and the legal costs can be substantial.
Formal execution remains the preferred approach. A person should not deliberately rely on the possibility that a court may later validate an irregular document.
Safe storage and probate
The original signed Will should be stored securely and in a location where the executor can find it. Suitable options may include:
Storage with the solicitor who prepared the Will.
Storage with an authorised trustee or public trustee service.
A secure, fire-resistant location at home.
Another location that protects the document from damage, loss or unauthorised changes.
The Will-maker should tell the executor where the original is stored. A copy may be provided to the executor for information, but the original document is often important when applying for probate.
Probate is a grant from the Supreme Court confirming that a Will is the deceased person’s valid last Will and authorising the executor to administer the estate. Probate may be required by banks, land registries or other institutions before they release or transfer assets. It is not required in every estate.
Queensland probate applications are dealt with through the Supreme Court of Queensland. NSW probate applications are dealt with through the Supreme Court of New South Wales.
Where an estate includes assets in both states, additional procedures may apply. The executor may need to consider where the grant should be obtained and whether it must be recognised or resealed in another jurisdiction.
Does a Queensland Will work in NSW?
A Queensland Will may be recognised in NSW, and a NSW Will may be recognised in Queensland. Cross-border recognition can depend on how and where the Will was executed, the deceased person’s residence or domicile, the location of real property and the requirements of the relevant court.
That does not mean a person moving interstate should take no action. Moving from Queensland to NSW, purchasing property in the other state, changing executors or entering a new relationship are all sensible reasons to have the Will reviewed.
The safest approach is to have a solicitor assess the Will and the person’s complete asset position rather than relying on a general online template.
Planning a legally effective Will
Lightning Legal provides professional estate-planning services for Queensland clients, including Wills, testamentary trusts and Enduring Powers of Attorney. The process is designed to provide clear advice, fixed-price options and direct access to an experienced solicitor.
Further information is available on the Lightning Legal Wills and Estate Planning page. Clients can also review pricing options or contact Lightning Legal to discuss their circumstances.
A properly drafted and executed Will can reduce uncertainty for an executor and provide a clearer framework for the administration of an estate. Because Queensland and NSW have different legislation and court procedures, legal advice should be obtained before signing, altering or relying on a Will involving both jurisdictions.
This article is general information only and is current as at 11 September 2026. It is not legal advice and does not consider the circumstances of any particular person. Queensland and NSW succession laws may change. A solicitor should be consulted before preparing or signing a Will.
Sources and further reading
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